By Thom Vaughan – Solicitor
EAD Solicitors LLP
Every party approaches litigation differently. There are those who are measured and careful, others who are devilishly strategic
and set traps, and then there is the class of bellowing, red – faced bullying litigant who is driven to distraction and hell bent on
menacing his opponent.
Mr Giles Patrick Cyril Mackay falls into this latter category according to the recent High Court decision of Walter Lilly
& Company Ltd v Mackay & Anor [2012] … and it may cost him his home. The case has nothing to do with agency law
but is valuable in terms of illustrating why a forceful approach to litigation does not always pay. It is also a
greatly entertaining read in places.
Mr Mackay is a very wealthy and successful property developer who, via an investment vehicle with others,vowned three adjoining properties and was desirous of converting them into dream homes of considerable opulence. He appointed a building contractor, Walter Lilly and Company Ltd, to make his dreams a reality. Mr Mackay personally owned one of the three properties and the judgment records its specification as follows:
The basement at No.3 comprises on the west side a large habitable space, designated as the Library where the extensive bookcases are covered in stitched leather. The Library windows, which largely comprise a large sliding door, look out onto a courtyard with a water feature, on the other side of which behind a similar sliding door is the swimming pool, on the western side of which are glass screens
behind which there are changing rooms, a lavatory and shower.
The very substantial sliding doors which lead out from the swimming pool and the Library are known as the Courtyard Sliding Doors. The glass screens on the western side of the pool comprise and incorporate a lighting feature which allows a flow of changing coloured light from top and bottom to be diffused through the whole of the screen; this is known as the Light Wall.
In the basement there is also a cinema and below the external area immediately outside the front door is a garage accessed by a car lift. The ceilings of the swimming pool and the cinema comprise what is known as Barrisol ceilings which essentially are a stretch light coloured fabric which conceals a substantial bank of lights which also change colour and are supposed to be diffused evenly through the
ceiling downwards. There are also a wine cellar, guest toilet facilities, a kitchen, laundry and staff quarters.
The building work progressed slowly and Mr Mackay and his wife expressed their concerns to the contractor. Mrs Mackay was concerned that her black walnut had changed colour in the sun and there were concerns about the leather work in the library. Mr Mackay considered that he was well placed in the dispute because the contractor would be obliged to pay considerable liquidated damages in the event that the
project was not finished on time. He became frustrated and expressed his views forcefully in an exchange of emails with Mr Howie of the contractor, including the following remarks:
Guess what – when I have forgotten about you in a years time enjoying my 100 million home or sailing on one of my 40 meter yachts – you’ll still be trying to wind up some other poor unsuspecting customer with your brand of mediocrity – a sad loser – gaining your kicks and
being irritating. Suggest a new career as a traffic warden might be ideal at least it wouldn’t involve lying.
…or is it the fact that your little Victorian 1800 sq ft cottage in Pulborough can fit into my dining room…
What is it that makes you so chippy little man? Well whatever it is you’re costing your company of fortune. I reckon around £1.5 million so far. Sent a note to your bosses last night saying your way isn’t working and asking when they might
fire you….
You’re such a loser. I’m going to enjoy finishing you off over the summer. But don’t worry you’ll be reading the contract and I’ll be on the beach. 50 this year – midlife crisis as well – nearest to a Ferrari you’ll ever get is a toy one…
My middle name is relentless. I have the money and anger at this point to push on and make sure that you have to deliver or get punished for not delivering. I don’t want to have to fight for that, but trust me I will NEVER give up if you don’t start to change your attitude it will cost WL time and money – it may eventually cost you your job. Who knows. Never underestimate me.
The judge, in considering Mr Mackay’s evidence, suggested that “I have formed the view that he is and has been for a
long time angry.” Aside from this statement of the blindingly obvious he continued “I found him to be an unsatisfactory witness. From my observations, I have formed the view that he has lost nearly all sense of objectivity in relation to this development and I consider
that he simply does not understand why, given the amount of money which he has spent, the house is not perfect or exactly as he and his wife wanted. His attitude has almost become in the nature of a vendetta against WLC.”
Ultimately, the court found against Mr Mackay and ordered him to pay a net sum to the contractor of around £2.5m.
The parties had expended between £9 – 10m in costs and if costs “follow the event” then he may have to pay a further
proportion of these, having already been ordered to pay £1.9m on account.
Following a further application for leave to appeal by Mr Mackay the court has allowed more time to pay. In allowing this the court took into account evidence from Mr Mackay that he is “extremely asset-rich but relatively illiquid”. This means he has to sell the property, 3
Boltons (that was the subject of the dispute), valued at around £60 million in order to satisfy the judgment. The judge said it would be
wrong to put Mr Mackay at risk of insolvency proceedings while he was doing this and awaiting the outcome of his application for leave to appeal.
In considering this case potential litigants should bear in mind the advantage of being careful, restrained and moderate when dealing with contracts that are experiencing difficulties or in litigation itself. This includes being courteous and respectful in correspondence.
Bullying, bravado and immoderate forcefulness do not impress judges.
If your middle name is “Relentless” or you have a yacht to sail away on then you may be well advised to avoid litigation
altogether; however, if you do require advice please contact the writer Thom Vaughan of EAD Solicitors LLP at
thom.vaughan@eadsolicitors.co.uk
Case reference:
Walter Lilly & Company Ltd v Mackay & Anor
[2012] EWHC 1773 (TCC) (11 July 2012),
http://www.bailii.org/ew/cases/EWHC/TCC/2012/1773.html
Head Office: Prospect House,
Columbus Quay, Liverpool L3 4DB
Tel: 0151 735 1000
www.eadsolicitors.co.uk
Thom Vaughan
Disclaimer: This column does not contain legal advice and is for general guidance only. Agentbase, E.A.D. Solicitors, Prime Forensic Accountants and the writer accept no liability in connection with the general guidance given in this column.